How can a judge deny my expungement request when the law says that I am eligible for expungement?

Centre County Expungement Law Firm

Expungement eligibility does not mean that an expungement is mandatory. If a person is eligible to have a charge expunged, the person must file an expungement petition with the Clerk of Courts or Prothonotary in the county in which the case was filed. Eligibility is needed to be able to file an expungement petition and thereby have a judge consider the request. Most expungements are discretionary, meaning a judge has to consider various factors and determine whether or not to grant the expungement request. Most expungements are not mandatory, meaning a person is generally not entitled to have a dismissed or withdrawn charge expunged. For example, if a person is convicted of Underage Drinking, a summary offense, there is a special portion of the expungement law governing this precise situation. The law states that a person is eligible for expungement if the person is now 21 and has successfully served the sentence. The law also states that if the person meets the required criteria, then the judge “shall” order expungement. The use of the word “shall” makes this expungement mandatory, meaning the judge basically has not discretion to expungement of an Underage Drinking charge if the requirements are met. Most of the expungement law does not use the word “shall,” so most expungements are discretionary.

When an expungement is discretionary, a very important factor is whether or not the district attorney will oppose the expungement request. If the district attorney does not oppose the request, then there is a high likelihood that the judge would grant the expungement request. However, if the district attorney opposes the expungement, then the judge is bound to consider various factors that are discussed in Pennsylvania court cases. Important factors that the court considers are the precise manner in which the charge was resolved, the reason for that resolution, the district attorney’s precise argument for opposing the expungement, and the petitioner’s reason for requesting an expungement. After considering the various factors, the judge makes the ultimate decision regarding whether or not an expungement is appropriate under the circumstances.

State College criminal defense attorney Jason S. Dunkle has successfully litigated expungement petitions that were opposed by the district attorney’s office. Contact Attorney Dunkle, an experienced expungement lawyer, for a FREE CONSULTATION at (814) 954-7622 or via e-mail.